Feds Seeks Dismissal of Ex-Airman's Surgery Suit

Fort Worth Star-TelegramBy Chris Vaughn

The U.S. government has asked a federal judge in Fort Worth to dismiss a lawsuit filed this spring on behalf of a retired Air Force airman who had both legs amputated when a routine surgical procedure went horribly wrong in a military hospital in California three years ago.

Fort Worth attorney Darrell Keith sued the government on behalf of Colton Read and his wife, Jessica, both of whom grew up in Arlington, challenging a 60-year-old Supreme Court precedent that bars service members from collecting damages from the government for wrongful death, medical malpractice or any other typical tort claims.

The lawsuit, filed in U.S. District Court in Fort Worth, seeks tens of millions of dollars for the Reads for pain, impairment, disfigurement, loss of earning capacity and mental anguish.

In a recently filed response, U.S. attorneys cite exactly that precedent -- known as the Feres Doctrine after the name of the original case in 1950 -- in arguing that the Reads' claims are a dead end.

"This case involves a straightforward application of the Supreme Court's nearly sixty-year-old holding in Feres," the brief states. "This Court is without jurisdiction to entertain the Reads' claims, and this case should be dismissed."

If Judge John McBryde dismisses the claim, Keith hopes eventually to persuade the Supreme Court to review the case and overturn what he once called the "extremely unjust, outmoded, universally criticized and judicially erroneous Feres Doctrine."

"Colton and his wife and I were expecting the federal government's response and motion to dismiss," Keith said. "The government's motion is just the first step in the long run to the Supreme Court."

The Feres Doctrine has withstood challenges over the years from military members and their families. The last challenge came from the family of an airman who died after a botched appendectomy at the same hospital where Read had his surgery, a case that ended last year when the Supreme Court declined to reverse a lower-court ruling that tossed out the suit.

Although other government employees and citizens can sue the government under the Federal Tort Claims Act, the Supreme Court ruled in the 1950s that military personnel cannot. Instead, the government has said that military members who are injured, no matter the cause, can receive pension benefits and lifelong medical care from the Department of Veterans Affairs.

The government attorneys said there is no disputing what the Supreme Court has ruled.

"Simply put, the FTCA's waiver of sovereign immunity does not extend to injuries which arise incident to military service, which is broad enough to encompass the alleged injuries sustained by the Reads," the government brief states.

Government attorneys also argued that the case should be dismissed because it was filed in the wrong venue.

At the least, the attorneys said, the case should be transferred to a federal judge in the Western District of Texas or in the Eastern District of California. The Reads own a home in New Braunfels, and the surgery was performed at Travis Air Force Base in California, neither of which are in the federal system's Northern District of Texas, the brief states.

Keith said that although the couple owns a house in New Braunfels, "as far they are concerned, it's still a temporary residence."

On July 9, 2009, Read went to the base hospital at Travis for laparoscopic, or minimally invasive, surgery to remove his gallbladder, an operation he needed before deploying overseas. The routine surgery turned nearly deadly when one of his doctors lacerated his aorta at the beginning of the procedure, according to court documents, and he started hemorrhaging.

It took several hours for the doctors to determine what had happened and fix it. Keith's lawsuit alleges that the doctors sewed Read's aorta shut and prevented blood from reaching his legs for longer still. When Read was transferred to a civilian hospital later that day, physicians had to amputate both his legs, one all the way to the hip.

The lawsuit accuses the government, the Air Force and the hospital of negligence and says they are liable for 23 different actions, or lack of actions, made by the two military surgeons that day.